Checking Your Privacy at the Border

Sept. 11, 2008

OPINION by LESLIE HARRIS

Rising gas prices, crowded airplanes and tightening wallets have all put a damper on America's travel plans. But there is another reason to think twice before planning a quick weekend jaunt to Mexico -- your privacy.

The amount of information the government collects on citizens crossing our borders, and the means with which it gathers it, is expanding in ways that seem procedurally chilling and irritatingly limitless in scope.

New regulations now allow Customs and Border Protection (CBP) agents to search your laptop computer. Every file, photo, e-mail or scrap of confidential data -- any of the secrets or intensely personal information you keep closely guarded -- is now subject to the spotlight of inspection and possible seizure without any "reasonable suspicion."

The rule extends to all electronic devices: your cell phone, your personal digital assistant, your iPod or iPhone. Ironically, the rule prohibits CBP agents from inspecting any unopened letters without a warrant, as long as those letters are in the postal system. So, while en route to the old country, your letter to grandma asking for her secret goulash recipe has more protection than the confidential merger agreements living on your hard drive.

Americans have come to expect that a CBP agent might rummage through their luggage. And while the thought of a total stranger stumbling across some dirty laundry might raise a blush, most Americans take such actions as a minor inconvenience for the security payoff we've come to expect from these random inspections. But personal computers are not dirty socks.

We increasingly live our lives online, filling our computers with confidential business information, personal writings, a record of our associations, banking transactions and health-care information. The same information locked in a desk drawer would be entitled to full Fourth Amendment protections. But in an environment where technology has far outstripped the law, a digital "strip search" at the border without any suspicion is perfectly legal.

Yes, horror stories abound. A U.S. tech company executive who is a Muslim has been subjected to laptop searches and secondary scrutiny eight times, noted Farhana Khera, president and executive director of Muslim Advocates, during her testimony before a Senate hearing on the procedure.

A survey by the Association of Corporate Travel Executives (ACTE) found that 7 percent of its members have had electronic devices searched at the border. Susan Gurley, executive director of ACTE, told a Senate panel that some executives have had to wait several weeks to get back electronic devices seized during border searches.

And no one is immune from the practice.

A therapist had just flown in from Jordan when she was detained at Customs and her cell phone taken from her. The therapist's daughter waited for her mother to clear Customs while she was questioned for an hour and a half; the daughter tried repeatedly during that time to reach the therapist on her cell phone.

At the end of the questioning the phone was returned, but all the missed-call records from the therapist's daughter had been erased, according to the account the therapist gave to the Washington Post.

The situation has drawn the ire of Congress; Sens. Russ Feingold, D-Wis., and Patrick Leahy, D-Vt., have urged CBP to reconsider its policy.